The Supreme Court of Ohio gave legs Thursday to its prevailing wage ruling against the Franklin County Commission, finding the county had committed the same abuse of discretion against the low-bid contractor for the county’s new animal shelter as it had in the widely publicized dispute over Huntington Park baseball stadium.
Gaylor Inc., an interstate electrical contractor, submitted the lowest bid for the county animal shelter but was told by the Department of Public Facilities Management last December that it had violated the county ban on firms out of compliance with prevailing wage laws more than three times in a two-year period within the last 10 years. The stipulation is one of 25 criteria purportedly used to determine whether a “bidder’s bid is the best,” as enumerated in Section 8.2.4 of the county guidelines.
“The county’s determination that Gaylor had violated prevailing-wage law was based on its own review and investigation of Ohio Department of Commerce records, even though the department has never found that Gaylor violated prevailing-wage law,” wrote the 4-2 Court. “All of Gaylor’s alleged violations were unintentional underpayments that it had settled without admitting liability or any administrative or judicial finding of liability.”
The company appealed the finding, submitting further evidence that it had never been classified by the state of Ohio as a prevailing wage violator. After meeting with Gaylor, county facilities management Director James Goodenow affirmed the department’s original determination and denied the protest on Feb. 9.
“The county’s rejection of Gaylor’s bid was based solely on the county’s interpretation of Section 188.8.131.52 despite having no evidence that Gaylor had been found by any administrative or judicial authority to have violated prevailing-wage law; the county did not consider any of the other criteria,” the Court said.
The company filed a complaint with the Supreme Court on Feb. 22 and asked that Franklin County be enjoined from proceeding with the planned construction.
“The next day, Feb. 23, the Franklin County Board of Commissioners awarded the electrical-systems contract for the county animal-shelter project to Jess Howard Electric Inc., for about $100,000 more than Gaylor’s bid, executed the contract, and issued a notice to the company to proceed,” the Court noted.
Despite the county’s charge that work had commenced on the project and that an injunction would be “moot,” the Court stayed further action on the animal shelter until it could issue an expedited ruling.
“This case is not moot,” the Court said. “Gaylor filed this action challenging the county’s rejection of its low bid on the electrical-systems contract for the county animal-shelter project and sought a stay of respondents’ actions on Feb. 22, which was before the board awarded the contract to another contractor. And although the board did, in fact, award the electrical-systems contract to another bidder on Feb. 23, which preceded our March 12 stay, respondents have introduced no evidence that the other contractor commenced construction pursuant to the awarded contract before we issued the stay.”
The high court reviewed the case record and determined, as it had in State ex rel. Associated Builders & Contrs. of Cent. Ohio v. Franklin Cty. Bd. of Commrs.(see The Hannah Report, 3/26/10), that Franklin County was once again guilty of an over-reliance on a flawed interpretation of fair labor standards.
“Notwithstanding the language in the county’s invitation to bid, the county treats the prevailing-wage violations of Section 184.108.40.206 as dispositive and it ignores other factors once it determines that a bidder has violated prevailing-wage laws more than three times in a two-year period in the last ten years….” the Court determined.
The Court denied, however, the company’s request that Franklin County commissioners be compelled outright to grant Gaylor the electrical contract.
“It is not entitled to this relief because it did not timely amend its complaint to include a request for it and it is ultimately the board’s determination under R.C. 307.90(A) whether Gaylor is the lowest and best bidder,” the Court said.
The late Chief Justice Tom Moyer had led the majority in the Associated Builders decision but did not participate in the Gaylor opinion. Justice Judith Ann Lanzinger once again joined acting Chief Justice Paul Pfeifer in dissent, citing the minority opinion in Associated Builders.